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    Wednesday, September 14, 2005

    Unconstitutional Pledge

    The news came down an hour or so ago, but a federal judge in San Francisco has ruled that precedent set two years ago means the pledge is unconstitutional because it forces people to say "under God."

    First, the Volokh Conspiracy has a good look at the logic of "precedent" in this situation and "vacating" vs "reversing" a decision.

    Secondly, this decision brings up a question: How many people in the minority must be protected by the majority in a democratic republic?? What if 49% of America disagreed with saying "under God"?? What if it was only one person? Some readers may think this is an easy question, but I disagree. It seems that if 49% of America disagreed with a pledge that had "under God" in it, that might have some weight behind changing it. However, if only 1 in 280 million people objected to saying "under God," and the rest supported the phrase as an integral part of pledging their allegiance to their country, I don't feel there is legal standing to strike the phrase. You then have one person deciding the fate of a country where everyone else believes differently.

    So if most people in the US believe "under God" is legit, and actively support it, what next? The constitution was written to provide a system of majority rule without trampling on the minority. This prohibits the tyrannical governments the founding fathers were revolting against. But if you deign to the whims of the minority in excess, doesn't the system become minority rule?

    Ultimately I am not insinuating that only 1 person in the United States, because of personal beliefs, wishes not to say "under God." What I do feel, is that such an issue affects so many people in such a personal way, that it should not be decided by courts--especially because other personal ways of excusing one's self are possible (standing for the pledge without saying it, omitting objectional parts while repeating it, etc.).

    This is not civil rights. A person cannot excuse his or her skin color. There was no viable alternative for that debate. But with viable alternatives, change should be enacted through legislation, not judication. The constitution provides for the protection of rights of minorities, but do not guarantee their opinions will become law for all.

    Let those who oppose "under God" in the pledge continue to recuse themselves from reciting that part, and form coalitions to raise support for legislation changing the pledge. Then, when the majority of Americans agree with their view, laws will pass and the pledge will change. A true democratic process will have been enacted. In the meantime, those in the minority may use personal means to recite the pledge without the offending phrase ...

    ...or move to another country who's pledge more closely adheres to their beliefs. Nobody's making anyone stay here.

    6 comments:

    IAMB said...

    What really drives me up the wall is how many people think that the Pledge is a document as old as the country itself. Those are the ones who resist the removal of "under God" because it would "deface" the original document.

    You should see some of the looks I get when I casually inform said people that the Pledge is less than 100 years old and that the phrase was added by Eisenhower around 1953 or so. Priceless, to say the least.

    ADRENALINE JUNKIE. said...

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    Triet said...

    Very true, iamb. There is ample evidence that the founding fathers did not shy away from mentioning God on official things (currency, the oath of the president, etc.), but the phrase in the pledge doesn't go back that far.

    My beef is that this court decision seems to be stepping on the toes of a super majority (perhaps 80-90% of the population or more) for the wishes of a minute few, when other, non-legal, methods of dealing with the problem exist.

    VietPundit said...

    Good post, Triet.

    BTW, are you having both Blogger and Haloscan comments now? It's a little confusing at first.

    I wanted to implement Haloscan comments and trackback, and found out that the old Blogger comments would be lost. Did you find a way to get around that?

    Triet said...

    No, I have not. what do you mean by old comments being lost?? Comments on other posts?? I really don't want the comments from haloscan, just a trackback option, and blogger recommended them.

    The website says it's now optimized for blogger, but I'm suspicious. I welcome any and all comments and suggestions on how to get good trackbacks without compromising the blog.

    Triet said...

    This is Thuan's comment from the Haloscan section:

    All right, now that I seem to have gotten into a place where I can make a comment...
    First off, last time this case came through the 9th Circuit to the Supreme Court they overturned the ruling on a technicality. This time round the same lawyer is making the arguments, and again the 9th Circuit Court decided in his favor. Yes, this time the technicality upon which the Supreme Court overturned last time has been removed, but that does not signify the inevitability of one decision or another. Two years ago the Supreme Court sidestepped the issue of constitutionality by ruling on the technicality, they may do so again. If Newdon managed to repair his arguments enough to force the hand of the Supreme Court, they will then have to face the issue. Should that happen, it is difficult to determine their decision. The court is in the process of becoming increasingly conservative, and, although I'm not familiar with the precedent, I do not believe it supports a straight up abolition of the phrase, "under God."
    I do believe that, whether through technicality or straight up ruling, the Supreme Court will likely pass the buck on this one. My guess is they will either find some way to force the legislature's hands, or compromise on illegalizing mandatory pledges. Either way I continue to support the idea of the Supreme Court and appreciate the difficulty of the issues with which they deal.
    On to the matter of the founding fathers...
    I have long disagreed with the idea that the founding fathers included regular references to God because they were especially devout or wanted their nation founded on principles of the Bible. I am much more inclined to believe they adopted many of the references and devices on the basis of Plato. It is much easier to govern a people when they believe that an omnipotent being will punish them for disobedience to those laws, than if they are governed by civic duty alone. The Enlightenment guided the founding fathers far more effectively than the Bible, and although I move against the Mormon mainstream by saying it, the Enlightenment removed God from government, not vice versa.
    Okay, now that I've used your blog for my own purposes Triet, I'm about done. If I can figure out how to get my blog working I'll post some more stuff on there, otherwise I'll have to move it, because there's stuff coming up I want to advertise. Until next time...